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From: [log in to unmask]
To: [log in to unmask]
Sent: 08/12/2004 22:25
Subject: Policy Post 10.22: Intelligence Reform Bill Passes Congress, Ends
Up A Mixed Bag for Civil Liberties
CDT POLICY POST Volume 10, Number 22, December 6, 2004
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) Intelligence Reform Bill Passes Congress, Ends Up A Mixed Bag for
Civil Liberties
(2) Civil Liberties Board Has Potential
(3) Information Sharing Provisions Create Oversight, Privacy Protections
(4) Troublesome New Surveillance Authority in Legislation
(5) More Privacy Officers May Be On the Way
(6) Other Provisions Have Civil Liberties Implications
------------------------------
(1) Intelligence Reform Bill Passes Congress, Ends Up A Mixed Bag for
Civil Liberties
The House and Senate have voted to pass the much-debated intelligence
reform bill, which responds at least in part to the recommendations
of the 9/11 Commission. Several months ago, the House and Senate
passed significantly different versions of the bill, and as late as
last week it was unclear whether a final bill would be brought to a
vote.
The 615-page legislation, which the President is expected to sign
shortly, is a mixed bag for civil liberties. Many of the most
egregious provisions contained in earlier provisions of the bill were
removed, but other provisions that protected civil liberties also
were removed or watered down.
Conference Report on and Text of Intelligence Reform Bill,
http://www.fas.org/irp/congress/2004_rpt/h108-796.html
------------------------------
(2) Civil Liberties Board Has Potential
The intelligence reform bill creates a Privacy and Civil Liberties
Oversight Board in the Executive Office of the President whose
purpose is to ensure that privacy and civil liberties are considered
in the policymaking process. Congress was responding to one of the
recommendations of the 9/11 Commission Report, which acknowledged
that counterterrorism efforts are leading to more powerful government
powers and that "adequate supervision of the executive's use of
powers to ensure protection of civil liberties" is necessary.
Although some powers of the Board were weakened compared to an
earlier Senate version, the Board has the potential to be an
important force in protecting civil liberties if the White House
gives the Board a role in the policymaking process, as Congress
intended.
------------------------------
(3) Information Sharing Provisions Create Oversight, Privacy Protections
The bill attempts to address one of the major problems in U.S.
counterterrorism efforts: the failure of government agencies to
share information and "connect the dots." It takes a comprehensive
approach, requiring the Executive Branch to first develop a system
design and privacy guidelines for information sharing. Modeled
largely on the Senate bill, the provision calls for:
* a set of pointers and directories to information, which can be
shared only with appropriate authorization;
* adoption of policy and privacy guidance before any system is built;
* a requirement on the front end of a system design plan weighing
costs and impacts;
* phased implementation to allow congressional and public reaction;
and
* the involvement of the civil liberties board to oversee and
ensure privacy safeguards.
CDT urges Congress to continue to take a strong oversight role with
regard to information sharing to ensure that appropriate safeguards
are in place to protect civil liberties.
------------------------------
(4) Troublesome New Surveillance Authority in Legislation
Although many "Patriot Act II" provisions did not make it to the
final bill, a few of those sections survived. The "lone wolf"
provision extends secret domestic intelligence surveillance under the
Foreign Intelligence Surveillance Act to individuals without any
suspected connection to a foreign terrorist organization or foreign
government -- an unnecessary and potentially unconstitutional
extension of government power. However, the legislation "sunsets"
the lone wolf provision at the end of 2005, when some other
surveillance powers in the USA PATRIOT Act expire.
------------------------------
(5) More Privacy Officers May Be On the Way
One provision of the intelligence reform bill indicates the sense of
Congress that agencies with law enforcement or counterterrorism
responsibilities should designate privacy officers. A more
substantive provision requiring privacy officers in departments and
agencies was included in this year's omnibus appropriations bill,
which the President signed into law today. Although it is unclear
precisely what departments and agencies are covered, the two
provisions taken together suggest that at least such entities as the
Department of Justice, Department of Treasury and Department of State
should have privacy officers.
------------------------------
(6) Other Provisions Have Civil Liberties Implications
Other provisions of the bill also have civil liberties implications,
both good and bad. The bill:
* requires that the Transportation Security Agency create redress
procedures for airline passenger screening;
* clarifies and strengthens the roles of the Department of Homeland
Security Privacy Officer, Civil Rights and Civil Liberties Officer
and Inspector General in protecting privacy and civil liberties;
* requires additional reports to Congress about intelligence
surveillance within the United States under the Foreign Intelligence
Surveillance Act;
* expands sharing of grand jury information with foreign governments;
* requires the Attorney General to report to Congress about the
process for doing criminal history background checks of job
applicants for private employers;
* requires that cruise ship passengers be checked against terrorist
watch lists; and
* increases funding for research into biometric-based mass
identification technologies.
In addition, in order to pass the bill, Congress agreed to some basic
national standards for driver's licenses and birth certificates, and
agreed to debate other driver's license and identification-related
issues next year.
------------------------------
Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_10.22.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 10.22 Copyright 2004 Center for Democracy and Technology
_______________________________________________
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